HCR Law Events

30 November 2023

Is it ok to download software from sources other than the original creator?

In short no – you will be dealing with pirated software. According to the Business Software Alliance (BSA) during the Covid-19 pandemic software piracy increased globally between 20 % – 30 %.

Illegal software is all over the internet, but what is it and how do you spot it?

First, it is necessary to understand how software it protected. Computer programmes or software can be protectable by copyright as ‘literary work’ or as a ‘database right’, under the Copyright, Designs and Patents Act 1988 (CDPA 1988). The function or design elements which can attract copyright protection are the source code or object code, preliminary design notes which lead to the development of a computer program and the overall structure, arrangement and organisation of a computer program.

As with other types of original literary works, copyright protection applies to the permanent expression of the owner’s creation, displaying the skill and labour which went into the manifestation of the idea. Applied to software, this equates to the expression of the computer program being the underlying code, text or graphics and comes into effect as soon as it is created in a permanent form.

An ‘infringing copy’ broadly means the reproduction, or copy, of the original representation without the owner’s consent. Unfortunately, unlike being fooled into buying a copycat biscuit brand, which you might only discover on the first disappointing bite, the consequences of downloading software that happens to be pirated could have more severe consequences.

If the “copy” was not provided as “open source” – the creator giving permission for it to be reproduced without licence or royalty – then the act of downloading a copy on to your local server constitutes a criminal offence and leaves you and your business open to a civil infringement claim. However, it could also create more practical issues. If the “copy” is corrupted it could lead to business interruption from viruses, or data breaches and if the wrongdoing was carried out by an employee, the employer may be held liable for the employee’s actions under the common law principle of ‘vicarious liability’.

So, how do you spot a counterfeit software?

The rule of thumb would be not to download any software unless it is from the creator’s own website – e.g., only download Word from Microsoft. However, there are many legitimate authorised resellers of software. A key indicator is price. If the cost of the software is substantially lower than from the creator direct, there is a high risk it is not an authorised copy. It might be identical coding to that provided by the creator, but if it is not being offered for sale pursuant to the creator’s consent – many end-user terms and conditions prohibit resale –it is an “infringing copy”.

This is known as “softlifting”. Softlifting involves purchasing a single licensed copy of the software and then loading the software onto several computers in violation of licensing terms. Similarly, there is internet piracy. This occurs when a person copies a programme and uploads it to a website for anyone to download.

To provide some context to this issue, as of 2023, Google has more than 6bn URLs to be delisted due to copyright infringement. A Microsoft-funded study found that downloading pirated software led to 36% of malware infections, with malware attacks due to unlicensed software packages costing up to $359bn annually. Photoshop has been the most actively searched software on digital piracy sites. Microsoft Word was the second most popular, with Microsoft Office was in third place. Excel, Windows 10, and Powerpoint were also very popular, according to Uswitch’s study.

Software companies can now identify with increasing accuracy when pirated software has been used, and by whom, via their IP address. Therefore, the individual, employee or employer could receive a letter of claim with demands for infringing material to be deleted and financial compensation to be provided. Other potential remedies that could be actioned against an infringing party include a freezing order, court order for disclosure of relevant information, seizure of infringing copies of the software, or an award of damages which could be of a punitive nature. Other orders will most likely include payment of the copyright holder’s legal costs.

Of course, the scale of the infringement will determine the proportionality of the remedy sought but piracy or downloading pirated content should not be considered consequence-free.

Software owners should take steps to protect their creations, individuals should be vigilant when sourcing or downloading programmes and employers should have training, policies, and procedures in place to prevent employees being caught out.

So, no, for many reasons, legal and practical, it is not ok.

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About the Author
Emma Clarkson, Solicitor

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